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SCAP-19-0000501

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

MĀLAMA CHUN, Plaintiff-Appellant,

vs.

BOARD OF LAND AND NATURAL RESOURCES, DEPARTMENT OF LAND AND 

NATURAL RESOURCES, STATE OF HAWAI‘I, and HAWAI‘I LONGLINE 

ASSOCIATION, Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT

(CAAP-19-0000501; CASE NO. 2CC191000089)

MEMORANDUM OPINION

(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and 

Circuit Judge Tonaki, in place of Pollack, J.1, recused)

I. INTRODUCTION

In a petition for a declaratory order (Petition) filed 

with the Board of Land and Natural Resources (BLNR), PlaintiffAppellant Mālama Chun requested the BLNR hold that the 

Department of Land and Natural Resources (DLNR) lacks authority 

to “issue commercial [marine] licenses to persons not lawfully 

 1 Associate Justice Richard W. Pollack retired on June 30, 2020.

Electronically Filed

Supreme Court

SCAP-19-0000501

11-AUG-2022

07:54 AM

Dkt. 33 MO
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admitted to the United States,” including foreign nonimmigrant 

crewmembers on longline fishing vessels. Specifically, Chun 

argued that Hawai‘i Revised Statutes (HRS) § 189-5 (2011) 

prohibits the DLNR from issuing commercial marine licenses 

(CMLs) to persons not lawfully admitted to the United States. 

The limitation in HRS § 189-5 applies only to persons 

“engage[d] in taking marine life for commercial purposes in the 

waters of the State.” HRS § 189-5 (emphasis added). The BLNR 

denied Chun’s Petition, concluding, among other things, that 

longline fishing vessels do not fish within state waters. The

Circuit Court of the Second Circuit (circuit court) affirmed. 

We granted Chun’s application for transfer and conclude that the 

DLNR is not prohibited from issuing CMLs to foreign nonimmigrant 

crewmembers on longline fishing vessels who fish for highly 

migratory species outside of state waters. Because the longline 

fishing vessels at issue here do not fish within state waters, 

we affirm the circuit court’s order denying Chun’s Petition. 

II. BACKGROUND

Hawai‘i’s longline fishing industry consists of 

approximately 140 boats that dock in Honolulu Harbor. These 

boats fish exclusively for “highly migratory species,” defined 

by the Magnuson-Stevens Conservation and Management Act 

(Magnuson-Stevens Act) as “tuna species, marlin (Tetrapturus 
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spp. and Makaira spp.), oceanic sharks, sailfishes (Istiophorus 

spp.), and swordfish (Xiphias gladius).” 16 U.S.C. § 1802. 

Federal regulations prohibit longline boats from 

fishing in specific areas around Hawai‘i. For example, longline 

boats cannot fish closer than approximately fifty miles to the 

north and east of the main Hawaiian Islands, and one hundred 

miles to the south and west of the main Hawaiian Islands. 

Longline fishing is also prohibited in the Exclusive Economic 

Zone2 (EEZ) around the Northwestern Hawaiian Islands, which 

extends two hundred nautical miles seaward. 

A. BLNR Proceedings 

Chun filed his Petition on April 12, 2017, requesting 

the BLNR to issue a “declaratory ruling regarding the authority 

of the [DLNR] to issue [CMLs3] to persons not lawfully admitted 

to the United States.” Chun contended he was an interested

person under HRS § 91-8 (2012)4 and thus permitted to “petition 

[the BLNR] for a declaratory order as to the applicability of 

any statutory provision.” HRS § 91-8. 

 2 An Exclusive Economic Zone (EEZ) is a region of the ocean where a 

coastal country claims exclusive rights to natural resources. 

3 HRS § 187A-1 (2011) defines CMLs as “a license issued to take 

marine life within or outside the State for commercial purpose.”

4 HRS § 91-8 (2012) states in relevant part: “Any interested person 

may petition an agency for a declaratory order as to the applicability of any 

statutory provision or of any rule or order of the agency.” 
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Chun also argued that HRS §§ 189-2 (2011)5 and 189-5 

“prohibit the [DLNR] from issuing [CMLs] to any person who has 

not been lawfully admitted to the United States” including 

foreign nonimmigrant crewmembers on longline fishing vessels. 

Additionally, Chun contended that issuing CMLs to foreign 

crewmembers who are subject to “unfair and illegal labor 

practices” contradicts “the Kānāwai Māmalahoe, or law of the 

Splintered Paddle, which [was] adopted at [a]rticle IX, 

[s]ection 10 of the Hawai‘i State Constitution.”6 

The BLNR denied Chun’s Petition on July 14, 2017, 

concluding: (1) Chun is not an “interested person” entitled to a 

declaratory order under HRS § 91-8; (2) the issue of whether 

commercial fishing companies’ employment of non-citizen fishers 

violates article IX, section 10 of the Hawai‘i Constitution is 

outside the jurisdiction of the BLNR; and (3) labor practices 

are also outside the jurisdiction of the BLNR. However, the 

 5 HRS § 189-2(a) (2011) states, in relevant part: “No person shall 

take marine life for commercial purposes whether the marine life is caught or 

taken within or outside of the State, without first obtaining a commercial 

marine license as provided in this section.” 

6 Article IX, section 10 of the Hawai‘i Constitution states:

The law of the splintered paddle, [kānāwai māmalahoe], 

decreed by Kamehameha I--Let every elderly person, woman 

and child lie by the roadside in safety--shall be a unique 

and living symbol of the State's concern for public safety.

The State shall have the power to provide for the safety of 

the people from crimes against persons and property. 
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circuit court7 reversed, concluding that “Chun made a prima facie 

showing that he is an interested person under HRS § 91-8” and is 

thus “entitled to a hearing” if the BLNR contested his prima 

facie showing that he is an interested person. 

On remand, Hawai‘i Longline Association (HLA)

intervened and filed a brief in opposition to Chun’s Petition 

contending, among other things, that “[t]he areas in which the 

Hawai‘i longline fishery operates are regulated by [f]ederal 

law,” and “[f]ederal law explicitly allows the use of foreign 

crews on U.S. vessels fishing for highly migratory species . . . 

.” Moreover, HLA argued that the plain language of HRS § 189-5 

limits fishing for commercial purposes in the waters of the 

state and has no application to commercial fishing that takes 

place exclusively outside of state waters. HLA contended that 

federal law “expressly permits” foreign nonimmigrant crewmembers 

to fish for highly migratory species, and the Magnuson-Stevens 

Act, 16 U.S.C. §§ 1801–1891d, reserves “exclusive fishery 

management authority over all fish” in the EEZ to the federal 

government.8 HLA argued that “because the Hawai‘i-based 

 7 The Honorable Joseph E. Cardoza presided. 

8 Specifically, 16 U.S.C. § 1811(a) states that “[e]xcept as 

provided in section 1812 of this title, the United States claims, and will 

exercise in the manner provided for in this chapter, sovereign rights and 

exclusive fishery management authority over all fish, and all Continental 

(continued . . .)
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longline fishing fleet fishes only in the EEZ and beyond, and 

not in state waters, [f]ederal law applies, and precludes state 

regulation that is inconsistent with [f]ederal fishing laws and 

regulations.” 

The BLNR issued its findings of fact, conclusions of 

law, and order denying Chun’s Petition on February 27, 2019. 

The BLNR first noted that Chun’s Petition “ultimately turns on 

the meaning of two phrases: ‘in the waters of the State[,]’ and 

‘lawfully admitted.’”9 In its findings of fact, the BLNR found, 

as relevant here: 

5. There is no evidence in the record that the 

presence of the crewmembers in Honolulu Harbor . . . is 

illegal in the eyes of the federal government . . . . 

 

(. . . continued)

Shelf fishery resources, within the exclusive economic zone.” (Emphasis 

added.) 

9 The BLNR held that foreign crewmembers of longline fishing 

vessels were “lawfully admitted” for the purposes of HRS § 189-5. The BLNR 

acknowledged that “lawfully admitted” does not always mean “lawfully admitted 

to permanent residency[,]” citing Takahashi v. Fish & Game Comm’n, 334 U.S. 

410 (1948) and Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012) as examples of 

cases where foreign individuals were lawfully present in the United States 

without being “lawfully admitted to permanent residency.” 

The BLNR also found that the legislature merely intended to 

differentiate “[a]liens not admitted to the United States, as distinguished 

from aliens who are legally in the United States[.]” (Emphasis omitted.) 

Further, the BLNR noted that various federal statutes and regulations 

establish the procedure for foreign crewmembers to obtain landing privileges; 

however, nothing in these statutes or regulations suggests that foreign 

crewmembers are illegally present if their landing privileges are not granted 

and they remain detained on the vessel. 

Despite the BLNR’s conclusions of law on this issue, we decline

to determine whether foreign crewmembers are “legally admitted” for purposes 

of HRS § 189-5 as we hold that longline fishing vessels do not in fact fish 

within the state marine waters. See discussion infra Section IV(B). 
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6. The longline vessels based in Honolulu Harbor 

fish exclusively for “highly migratory species” as that 

term is defined in the Magnuson-Stevens Act . . . .

7. Because of [f]ederal regulations, the longline 

boats do not fish closer than fifty miles to the north and 

east of the main Hawaiian Islands, and one hundred miles to 

the south and west of the main Hawaiian Islands. 

. . . . 

9. Most fish caught by the longliners are taken 

beyond the Hawai‘i EEZ, from the “high seas” or 

international waters. 

(Citations omitted.) 

The BLNR explained that “[e]ven if [foreign 

nonimmigrant] crewmembers . . . were not ‘lawfully admitted[,]’ 

HRS § 189-5 does not prohibit them from receiving a CML.” It 

additionally noted that the statute only prohibits foreign 

nonimmigrant crewmembers from taking marine life within state 

waters and “does not prohibit [foreign nonimmigrant crewmembers] 

from taking marine life outside the waters of the State and 

bringing it into the State for sale.” The BLNR concluded, as 

relevant here: 

3. [HRS § 189-5] limits the prohibition on taking 

marine life for commercial purposes by [foreign 

nonimmigrant crewmembers] to marine life taken “in the 

waters of the State.”

. . . . 

5. This language, combined with HRS § 189-2(a) 

regarding the requirement of getting a CML, means that in 

addition to someone who actually takes marine life for 

commercial purposes, someone who takes marine life outside 

the waters of the State, but brings it into the State for 

sale, must get a CML. It does not, however, change the 

fact that the HRS § 189-5 ban only refers to marine life 

actually caught in the waters of the State. 
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. . . .

7. HRS § 189-5 does not prohibit non-admitted aliens 

from working on boats that take marine life outside the 

waters of the State and bring it into the State for sale. 

8. Petitioner makes an argument based on a provision 

in HRS § 189-2(a) that a CML is required if one takes 

marine life for commercial purposes “whether the marine 

life is caught or taken within or outside of the State[.]” 

The short answer to this is that HRS § 189-5 prohibits nonadmitted alien commercial fishing only “in the waters of 

the State.” 

9. Petitioner may have been led astray, however, by 

inartful drafting of HRS § 189-2(a) . . . .

10. Read literally, HRS § 189-2(a) asserts that 

anyone taking marine life for commercial purposes anywhere 

on Earth must get a Hawai‘i CML, because everywhere on Earth 

is either “within or outside of the State.” This is an 

absurd reading. Hawai‘i cannot make people taking marine 

life in the Atlantic Ocean get a CML, absent some nexus to 

Hawai‘i[.]

. . . . 

13. In any case, [ ] whatever the territorial reach 

of HRS § 189-2(a) may be, HRS § 189-5 applies only “in the 

waters of the State.” 

The BLNR next concluded that the longline fishing 

vessels do not fish within the waters of the state. The BLNR 

explained that when HRS § 189-5 was first enacted by Act 211, 

SLH 1949, the words “waters of the Territory of Hawai‘i” meant a 

band around the islands extending three nautical miles from the 

shore.10 After statehood, HRS § 189-5 was amended so that 

 10 To support this proposition, the BLNR cited The King v. Parish, 1 

Haw. 36, 58 (Haw. Kingdom 1849); Carter v. Territory of Haw., 14 Haw. 465, 

468-69 (Haw. Terr. 1902); In re Bishop, 35 Haw. 608, 643-44 (Haw. Terr. 

1940); Civ. Aeronautics Bd. v. Island Airlines, Inc., 235 F. Supp. 990, 1007 

(D. Haw. 1964), aff’d, 352 F.2d 735 (9th Cir. 1965); and Dettling v. United 

States, 983 F. Supp. 2d 1184, 1201 (D. Haw. 2013). 

(continued . . .)
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“waters of the Territory” became “waters of the State.” The 

BLNR then “consider[ed] whether ‘waters of the State’ now means 

something different.” The BLNR recognized that its declaratory

order could not be a definitive determination of Hawai‘i’s 

current oceanic boundaries. However, it held that “for the 

purposes of this declaratory order it is enough to demonstrate 

that the longline fishing boats do not fish within Hawai‘i’s 

oceanic boundaries, even given the most expansive possible 

interpretation of those boundaries.” The BLNR then considered 

several alternative interpretations of “waters of the State” and 

concluded that longline fishing vessels do not fish within the 

ambit of any interpretation. 

In relevant part, the BLNR considered whether “waters 

of the State” includes archipelagic waters. The BLNR concluded 

that:

31. The 1978 Constitutional Convention proposed an 

amendment to [article XV, §1 of the state constitution] to 

add “and archipelagic” to the first sentence of this 

provision, which now reads “The State of Hawai‘i shall 

consist of all the islands, together with their appurtenant 

reefs and territorial and archipelagic waters[.]” 

32. The Proceedings of the 1978 Constitutional 

Convention do not fully explain what was meant by 

“archipelagic waters” . . . . 

 

(. . . continued)

The BLNR noted that it is not clear whether the “1949 Legislature 

considered the channels to be within the boundaries of the Territory.” 

However, the BLNR held that the inclusion or exclusion of the channels “does 

not matter” because “longline boats do not fish in the channels.” 

 
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. . . .

34. Art. 46-47 of the . . . United Nations 

Convention on the Law of the Sea (1982) (“UNCLOS”) define 

circumstances under which an island nation (not an American 

state) may claim “archipelagic waters”, and the extent of 

such waters. Essentially, the boundary lines are drawn 

from points on the outer islands, but cannot be more than 

125 nautical miles long. Drawing such lines from various 

points on the main Hawaiian Islands does not enclose any 

areas more than fifty miles to the north or east of the 

islands, or more than one hundred miles to the west or 

south. Thus, even assuming Hawai‘i’s oceanic boundaries now 

encompass “archipelagic waters” as so defined in 

international law . . . these longline boats do not fish 

within them.

(First emphasis in original.)

The BLNR also interpreted “waters of the State” to 

mean the “state marine waters,” which was defined in 1990 Haw. 

Sess. Laws Act 126, §1 at 232 to include the “territorial sea.”11 

Regarding Act 126, the BLNR concluded that:

36. Hawai‘i’s statutes now apparently claim a twelve 

nautical mile wide territorial sea. Act 126, SLH 1990, 

amended several sections of the Hawai‘i Revised Statutes by 

adding a definition of “state marine waters”, including one 

section currently codified as HRS §189-1.5:

State marine waters. As used in this chapter, 

state marine waters shall be defined as extending 

from the upper reaches of the wash of the waves on 

shore seaward to the limit of the State’s police 

power and management authority, including the U.S. 

territorial sea, notwithstanding any law to the 

contrary.

 11 The BLNR defined “territorial sea” or “marginal sea” as the 

oceanic boundaries of a state or nation, where the state or nation exercises 

sovereignty, except for certain rights of passage under international law. 

Presidential Proclamation 5928, dated December 27, 1988, extended the 

“territorial sea” from the former three-mile area to then encompass twelve 

nautical miles from the “baseline.” 
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37. According to Conf. Com. Rep. 6 on H.B. 2233, 

which became Act 126: 

The purpose of this bill is to define the 

boundaries of the state marine waters as extending 

twelve nautical miles seaward from the upper reaches 

of the wash of the waves on shore and the 

archipelagic waters. It also defines the territorial 

sea as the waters and seabed extending seaward to 

twelve nautical miles from the baseline as determined 

in accordance with international law and as 

established by Presidential Proclamation 5928, dated 

December 27, 1988.

(Emphasis added.) The BLNR ultimately held that “longline boats 

do not fish in this twelve-mile belt.” (Emphasis added.) 

The BLNR also clarified that article XI, section 11 of 

the Hawai‘i Constitution does not determine, claim, or amend 

Hawai‘i’s boundaries.12 

 12 Article XI, section 11 of the Hawai‘i Constitution provides that:

The State of Hawai‘i asserts and reserves its rights and 

interest in its exclusive economic zone for the purpose of 

exploring, exploiting, conserving and managing natural 

resources, both living and nonliving, of the seabed and 

subsoil, and super adjacent waters.

Article XI, section 11 merely asserts the State’s rights to 

regulate and exploit within the EEZ. The BLNR also identified the State’s 

reserved authority within and outside “the territorial sea”:

41. When the Legislature dealt with the 

controversies over longline fishing near the Hawaiian 

Islands, it banned it in “the territorial sea.” HRS §189-

2.5(b). Outside the territorial sea, it asserted only that 

Hawai‘i could jointly enforce, with the federal government, 

regulations established under the federal regulatory system 

referred to above. HRS §189-2.5(c); HRS §189-3.5.
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The BLNR then rejected Chun’s argument that “issuing 

CML to the alien crewmembers would authorize the crewmembers to

fish illegally.” The BLNR explained that:

43. HRS §189-5 does apply within Hawai‘i’s 

territorial boundaries. The CML would not authorize the 

holder, if he or she were an alien “not lawfully admitted,” 

to fish within Hawai‘i’s territorial seas, which are “waters 

of the State.” The fact that a person holds a CML does not 

authorize the person to ignore other laws regarding the 

taking of marine life. . . . The fact that a CML holder may 

possibly violate state laws in the future does not justify 

denying them a CML.

44. That these alien crewmembers—even if not 

“lawfully admitted” as the term is used in HRS §189-5—can 

lawfully fish somewhere without violating that statute, for 

example, on the high seas, is enough to deny this Petition, 

because it asks the Board to categorically deny that they 

can be issued CML’s [sic]. Because they can fish on the 

high seas and/or the EEZ without violating Hawai‘i law, it 

makes sense to issue them a CML when they bring the catch 

to port. This is not prohibited by HRS §189-5 or any other 

law.

45. [Chun] conceded that HRS §189-5 was 

“unenforceable” in the EEZ.

B. Circuit Court Proceedings 

Chun appealed to the circuit court, and filed a motion 

for summary judgment. On July 1, 2019, the circuit court filed 

an order affirming the BLNR’s decision and denied Chun’s motion 

for summary judgment. The circuit court ruled, inter alia, that 

“[HRS §] 189-2 applies in general to the issuance of [CMLs] and 

does not contain a limitation relative to the issuance of a 

license concerning being lawfully permitted to be in the United 

States.” The circuit court additionally concluded:

[HRS §] 189-5 makes it unlawful for any person who is not 

lawfully admitted to the United States to engage in the 
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taking of marine life for commercial purposes in the waters 

of the [S]tate of Hawai‘i. And here, the fishermen in 

question are not engaged in the taking of marine life for 

commercial purposes in the waters of the State of Hawai‘i.

And that specific provision here, in the Court’s view 

respectfully, is controlling. 

C. Proceedings on Appeal 

On appeal, Chun argues that the circuit court erred in 

affirming the BLNR’s order that (1) foreign nonimmigrant 

crewmembers were “lawfully admitted” to the United States; (2) 

CMLs can be issued to persons not “lawfully admitted” to the 

United States; and (3) “a factual record of alien fishers 

holding commercial fishing licenses and conducting commercial 

fishing within state waters, was a required element of relief 

sought by the Petition.” 

The State’s answering brief argues that the 

legislative history of HRS § 189-5 reveals the legislature’s 

intent to ban “[a]liens not admitted to the United States” – as 

opposed to aliens who are legally in the United States – from 

commercial fishing in state waters. Therefore, foreign 

nonimmigrant crewmembers on longline fishing vessels are 

“lawfully admitted” to the United States. Moreover, the State 

contended that Chun does not dispute the fact that most longline 

vessels fish in waters beyond the EEZ. 

HLA reiterates its arguments raised below in its 

answering brief. 
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III. STANDARDS OF REVIEW

A. Administrative Agency Decisions – Secondary Appeals

Review of a decision made by the circuit court upon 

its review of an agency’s decision is a secondary appeal. 

The standard of review is one in which this court must 

determine whether the circuit court was right or wrong in 

its decision, applying the standards set forth in HRS § 91-

14(g) [1993] to the agency’s decision.

Flores v. Bd. of Land & Nat. Res., 143 Hawai‘i 114, 120, 424 P.3d 

469, 475 (2018) (alteration in original) (quoting Paul’s Elec.

Serv., Inc. v. Befitel, 104 Hawai‘i 412, 416, 91 P.3d 494, 498 

(2004)).

HRS § 91-14(g) (Supp. 2017) states:

Upon review of the record, the court may affirm the 

decision of the agency or remand the case with instructions 

for further proceedings; or it may reverse or modify the 

decision and order if the substantial rights of the 

petitioners may have been prejudiced because the 

administrative findings, conclusions, decisions, or orders 

are:

(1) In violation of constitutional or statutory 

provisions;

(2) In excess of the statutory authority or 

jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, 

probative, and substantial evidence on the whole 

record; or

(6) Arbitrary, or capricious, or characterized by 

abuse of discretion or clearly unwarranted exercise 

of discretion.

“[U]nder HRS § 91-14(g), conclusions of law are 

reviewable under subsections (1), (2), and (4); questions 
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regarding procedural defects under subsection (3); findings of 

fact under subsection (5); and an agency’s exercise of 

discretion under subsection (6).” Flores, 143 Hawai‘i at 121, 

424 P.3d at 476 (alteration in original) (internal quotation 

marks omitted) (quoting Paul’s Elec. Serv., Inc., 104 Hawai‘i at 

416, 91 P.3d at 498).

B. Statutory Interpretation 

“Statutory interpretation is a question of law 

reviewable de novo.” State v. Wheeler, 121 Hawai‘i 383, 390, 219 

P.3d 1170, 1177 (2009) (internal quotation marks omitted).

This court’s construction of statutes is shaped by the 

following rules:

First, the fundamental starting point for statutory 

interpretation is the language of the statute itself. 

Second, where the statutory language is plain and 

unambiguous, our sole duty is to give effect to its 

plain and obvious meaning. Third, implicit in the 

task of statutory construction is our foremost 

obligation to ascertain and give effect to the 

intention of the legislature, which is to be obtained 

primarily from the language contained in the statute 

itself. Fourth, when there is doubt, doubleness of 

meaning, or indistinctiveness or uncertainty of an 

expression used in a statute, an ambiguity exists.

When there is ambiguity in a statute, “the meaning of the 

ambiguous words may be sought by examining the context,

with which the ambiguous words, phrases, and sentences may 

be compared, in order to ascertain their true meaning.” 

Moreover, the courts may resort to extrinsic aids in 

determining legislative intent, such as legislative 

history, or the reason and spirit of the law.

Id. (quoting Citizens Against Reckless Dev. v. Zoning Bd. of

Appeals, 114 Hawai‘i 184, 193–94, 159 P.3d 143, 152–53 (2007)).
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IV. DISCUSSION 

A. HRS § 189-5 Does Not Prohibit the DLNR From Issuing CMLs to 

Foreign Nonimmigrant Crewmembers on Longline Fishing 

Vessels Under HRS § 189-2 

This case requires us to consider the provisions of 

two statutes, which provide, in relevant part, as follows: 

No person shall take marine life for commercial purposes 

whether the marine life is caught or taken within or 

outside of the State, without first obtaining a commercial 

marine license as provided in this section.

HRS § 189-2(a).

It is unlawful for any person who has not been lawfully 

admitted to the United States to engage in taking marine 

life for commercial purposes in the waters of the State.

HRS § 189-5.

Chun contends that the DLNR violates HRS § 189-5 by 

issuing CMLs under HRS § 189-2 to foreign nonimmigrant 

crewmembers on longline fishing vessels. We disagree. Rather, 

as the BLNR found, “HRS § 189-5 . . . prohibits non-admitted 

aliens from the commercial taking of marine life ‘in the waters 

of the State.’ It does not prohibit them from taking marine 

life outside the waters of the State and bringing it into the 

State for sale.” (Emphasis in original.)

1. HRS § 189-2 permits the DLNR to issue CMLs to foreign 

nonimmigrant crewmembers on longline fishing vessels 

“[T]he fundamental starting point for statutory 

interpretation is the language of the statute itself.” Wheeler, 

121 Hawai‘i at 390, 219 P.3d at 1177 (quoting Citizens Against
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Reckless Dev., 114 Hawai‘i at 193–94, 159 P.3d at 152–53). HRS § 

189-2(a) states, “No person shall take marine life for 

commercial purposes whether the marine life is caught or taken 

within or outside of the State, without first obtaining a [CML]

as provided in this section.” (Emphasis added.) Our court has 

long established that “where the statutory language is plain and 

unambiguous, our sole duty is to give effect to its plain and 

obvious meaning.” Wheeler, 121 Hawai‘i at 390, 219 P.3d at 1177 

(citations omitted). However, “where a statute is susceptible 

of two constructions, by one of which grave and doubtful 

constitutional questions arise and by the other of which such 

questions are avoided, our duty is to adopt the latter.” In re 

Doe, 96 Hawai‘i 73, 81, 26 P.3d 562, 570 (2001) (quoting U.S. ex 

rel Att'y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909));

cf. Clark v. Martinez, 543 U.S. 371, 381 (2005). 

Were we to adopt Chun’s interpretation, HRS § 189-2 

would require any person taking any marine life anywhere in the 

world for commercial purposes to first obtain a CML from the 

DLNR. A literal reading of the statute would thus result in an 

absurdity; the legislature does not have the power to regulate 
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conduct that lacks a cognizable connection to the state.13 

Therefore, we must construe the statute to require a CML only 

when the taking of marine life has some nexus to the state. See

State v. McKnight, 131 Hawai‘i 379, 389, 319. P.3d 298, 308 

(2013) (“Even where a statute appears unambiguous, the court may 

deviate from a literal application of the language in order to 

avoid absurdity and give effect to the legislature’s intended 

purpose.” (citation omitted)). 

The BLNR instead concluded that HRS § 189-2 requires

CMLs in two scenarios that give rise to a Hawai‘i nexus: (1) when 

taking marine life within state waters for commercial purposes, 

and (2) when bringing marine life taken from outside state 

waters for commercial purposes in the state. This 

interpretation avoids absurd and unintended results; we thus 

conclude that the BLNR’s interpretation of HRS § 189-2 to 

require CMLs in the two aforementioned scenarios is correct. 

 13 Indeed, we note that such a construction would likely violate the 

dormant commerce clause. See Healy v. Beer Inst., Inc., 491 U.S. 324, 336 

(1989) (“[A] statute that directly controls commerce occurring wholly outside 

the boundaries of a State exceeds the inherent limits of the enacting State’s 

authority and is invalid regardless of whether the statute’s extraterritorial 

reach was intended by the legislature.”); State v. Alangcas, 134 Hawai‘i 515, 

536, 345 P.3d 181, 202 (2015) (“The doctrine of the dormant commerce clause 

is a result implied from the federal government’s exclusive authority to 

control interstate commerce and may require a court to invalidate a state law 

that interferes with that authority.” (footnote and citation omitted)); but 

see Oral Argument at 13:03, Chun v. Bd. of Land & Nat. Res., -- Hawai‘i --, --

P.3d -–, 2022 WL --, (August 11, 2022) (mem.), 

http://oaoa.hawaii.gov/jud/oa/20/SCOA_091820_SCAP_19_501.mp3.
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Cf. State v. Park, 55 Haw. 610, 614, 525 P.2d 586, 589-90 (1974) 

(“It is well settled and established in this jurisdiction that 

courts are required to construe and interpret a statute where it 

is ambiguous, or, absent such ambiguity, where the literal 

application of the statute causes an absurd or unjust 

result[.]”). 

2. HRS § 189-5 prohibits the issuance of CMLs to persons 

not “lawfully admitted” to the United States for 

purposes of taking fishing only within state waters 

In turn, HRS § 189-5 provides, “It is unlawful for any 

person who has not been lawfully admitted to the United States 

to engage in taking marine life for commercial purposes in the 

waters of the State.” (Emphasis added.) Unlike HRS § 189-2, 

this statute is unambiguous. See, e.g., Park, 55 Haw. at 614, 

525 P.2d at 590 (“[W]here there is no ambiguity in the language 

of a statute, and the literal application of the language would 

not produce an absurd or unjust result . . . there is no room 

for judicial construction and interpretation, and the statute 

must be given effect according to its plain and obvious 

meaning.”). The statute precludes persons not lawfully admitted 

to the United States from taking marine life within state waters 

for commercial purposes. Moreover, the statute makes no mention 

of the taking of marine life outside of state waters. 
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If the legislature intended HRS § 189-5 to prohibit 

those not lawfully admitted to the United States from taking 

marine life outside of the state for commercial purposes within 

the state, we presume it would have said so. See State v. 

Demello, 136 Hawai‘i 193, 195, 361 P.3d 420, 422 (2015) (“[T]his 

court must presume that the legislature meant what it said and 

is further barred from rejecting otherwise unambiguous statutory 

language.” (citation omitted)); cf. State v. Haugen, 104 Hawai‘i 

71, 76, 85 P.3d 178, 183 (2004). In contrast, the legislature 

provided in HRS §189-2 that a CML is required before any person 

“take[s] marine life for commercial purposes whether the marine 

life is caught or taken within or outside of the State.” 

(Emphasis added). The express inclusion of “outside of the 

State” in HRS § 189-2 suggests that the legislature 

“intentionally and purposely” excluded similar language from HRS 

§ 189-5 that would prohibit those not lawfully admitted to the 

United States from taking marine life outside of the state for 

commercial purposes within the state. See In re Water Use 

Permit Applications, 94 Hawai‘i 97, 151, 9 P.3d 409, 463 (2000)

(quoting Gozlon–Peretz v. United States, 498 U.S. 395, 404 

(1991)) (“[W]here [the legislature] includes particular language 

in one section of a statute but omits it in another section of 

the same Act, it is generally presumed that [the legislature] 
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acts intentionally and purposely in the disparate inclusion or 

exclusion.” (Brackets in original.))

Chun argues that the “DLNR’s issuance of a [CML] to 

non-citizen commercial fishers pursuant to HRS § 189-2, without 

qualification or limit to the use of those licenses,” violates 

HRS § 189-5. He further argues that issuing such a CML 

“provide[s] no restrictions on the license-holder and leaves it 

entirely to the licensee to determine what restrictions are 

placed upon the license by law.” In support of this contention, 

Chun cites Alaloa v. Plan. Comm’n of Maui Cnty., 68 Haw. 135, 

705 P.2d 1042 (1985), and argues that this court has rejected 

the “self-regulation” of licenses. 

Chun’s reliance on Alaloa is misplaced. In Alaloa, 

this court rejected the Maui Planning Commission’s grant of a 

conditional permit to the developer of a large condominium 

construction project in a special management area that was 

governed by the Coastal Zone Management Act (CZMA). 

Specifically, the permit was “conditioned upon retention of a 

qualified archaeologist to conduct a further survey and 

excavation of the area . . . [and] to determine the significance 

of [the] various archaeological sites” located near the 

development. Alaloa, 68 Haw. at 136-37, 705 P.2d at 1044. This 

court, concluding that the commission erred in granting the 
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conditional permit, explained that “the CZMA mandates that 

[findings regarding the archaeological significance and 

preservation of those sites] must first be made before a 

[permit] can be issued.” Id. at 137, 705 P.2d at 1044 (emphases 

in original). By granting the permit, the commission created 

“self-serving conditions” wherein the developer was allowed to 

determine whether it “complie[d] with the policies and 

objectives of the CZMA regarding historical and archaeological 

significance.” Id. We thus concluded that the commission 

violated its duties under the CZMA to ensure that “the proposed 

development project[] [was] consistent with the[] [state’s] 

policies and objectives” under the CZMA. Id. at 136, 705 P.2d 

at 1044. 

The Alaloa holding is distinguishable. The DLNR does 

not violate HRS § 189-5 by issuing CMLs under HRS § 189-2 to 

foreign nonimmigrant crewmembers on longline fishing vessels, 

nor does it consign any of its duties under HRS § 189-5 to the 

licensee. Certainly, issuing a CML to a foreign nonimmigrant 

crewmember on a longline fishing vessel for marine life caught 

outside of state waters is permissible under HRS § 189-2 and 

additionally complies with HRS § 189-5. These foreign 

crewmembers are not left “to determine what restrictions are 

placed upon” them as Chun contends; rather, HRS § 189-5 
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expressly prohibits them from “engag[ing] in taking marine life 

for commercial purposes in the waters of the State.” Alaloa is 

thus inapposite. 

3. HRS §§ 189-2 and 189-5 are not in conflict with one 

another 

That HRS § 189-2 makes no reference to HRS § 189-5 is 

immaterial. Both statutes relate to the issuance of CMLs, and 

“[l]aws in pari materia, or upon the same subject matter, shall 

be construed with reference to each other.” Richardson v. City 

& Cnty. of Honolulu, 76 Hawai‘i 46, 55, 868 P.2d 1193, 1202 

(1994) (alteration in original) (quoting HRS § 1-16 (1985)). 

Moreover, “where the statutes simply overlap in their 

application, effect will be given to both if possible, as repeal 

by implication is disfavored.” Id. (quoting Mahiai v. Suwa, 69 

Haw. 349, 356-57, 742 P.2d 359, 366 (1987)). HRS § 189-2 

mandates who must have a CML, whereas HRS § 189-5 limits where

persons not lawfully admitted to the United States may engage in 

the taking of marine life for commercial purposes. The statutes 

are not in conflict with one another as each serves separate and 

distinct purposes regarding the same subject matter. See

Richardson, 76 Hawai‘i at 55, 868 P.2d at 1202 (holding that HRS 

§§ 46-1.5(6) (Supp. 1992), 46-61 (1985), 46-62 (1985), and 101-2 

(1985) do not conflict but rather complement each other because, 

read in pari materia, HRS §§ 46-1.5(6) and 101-2 provide 
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counties with the power of eminent domain, HRS § 46-61 

establishes the public uses for which the counties may use the 

power, and HRS § 46-62 establishes the procedures counties must 

use “in exercising the power”).

Indeed, a person not lawfully admitted to the United 

States may receive a CML pursuant to HRS § 189-2 and would not 

violate HRS § 189-5 so long as that individual does not take 

marine life within state waters. Construing the statutes in 

pari materia: (1) under HRS § 189-2, any person who intends to 

take marine life from waters within or outside the state for 

commercial purposes within the state must first obtain a CML; 

(2) as HRS § 189-2 makes no mention of citizenship status, 

individuals not lawfully admitted to the United States are 

permitted to received CMLs pursuant to HRS § 189-2; (3) under 

HRS § 189-5, individuals not lawfully admitted to the United 

States may not engage in taking marine life for commercial 

purposes in the waters of the state; and (4) even if individuals 

not lawfully admitted to the United States have valid CMLs 

pursuant to HRS § 189-2, they are still prohibited by HRS § 189-

5 from “taking marine life for commercial purposes in the waters 

of the State.”
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B. Longline Fishing Vessels Do Not Take Marine Life Within 

the “Waters of the State” or Hawai‘i’s Territorial Sea

Chun further contends that the “waters of the State” 

– under HRS § 189-5 and for purposes of the state’s regulatory 

authority – extend 200 miles from Hawai‘i’s shores, to include 

the area of the federal EEZ.14 Thus, Chun argues that HRS § 189-

5 prohibits the foreign longline crewmembers at issue from 

“taking marine life for commercial purposes” within 200 miles 

off Hawai‘i’s shores. Chun also argues that the state’s 

regulatory authority extends no further than the same 200-mile 

boundary, meaning that the privileges granted by a CML can only 

be exercised within the 200-mile boundary. Taken together, Chun

contends that because the foreign longline crewmembers cannot

fish within the 200-mile boundary, but the privileges of a CML 

can only be exercised within the 200-mile boundary, there is no 

way for a foreign longline crewmember to lawfully exercise the 

privileges of a CML.15 

 14 Proclamation No. 5030, 48 Fed. Reg. 10605 (Mar. 10, 1983)

proclaimed that the EEZ “extends to a distance 200 nautical miles from the 

baseline from which the breadth of the territorial sea is measured.”

15 At oral argument, counsel for Chun argued: 

The issue basically boils down to the State cannot 

issue licenses to individuals that can basically never 

exercise the privileges granted under that license. . . . 

Our position is that there is no place within the state’s 

jurisdiction under the statute that these individuals can 

take [CMLs]. . . . In this instance, there’s no . . . where 

(continued . . .)
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We reject Chun’s premise that under the relevant 

statutory framework, “waters of the State” extend 200 miles from 

Hawai‘i’s shoreline to include the entire area of the federal 

EEZ. Further, we conclude that the BLNR’s findings that the 

longline vessels at issue in this case do not fish within the 

“waters of the State,” the state marine waters, or the channels 

between the islands, is not clearly erroneous. 

1. The state’s statutory authority to regulate longline 

fishing extends from Hawai‘i’s shores to the 

territorial sea and the archipelagic waters

Chun’s arguments on appeal focus solely on the 

intersection of HRS §§ 189-2 and 189-5. HRS §§ 189-2 and 189-5

are general laws in that they address fishing generally and do 

not explicitly address longline fishing. As HLA notes, HRS §§ 

189-2 and 189-5 are not the only statutes applicable to the 

longline vessels at issue in this case. HRS § 189-2.5 (2011)

provides specific guidance on longline fishing:

(b) It is unlawful to engage in longline fishing or to sell 

or offer for sale, any marine life taken with longline fishing 

gear within the boundaries of the State's territorial sea.

. . . .

 

(. . . continued)

an individual with this license anywhere within the state’s 

jurisdiction or management . . . can legally fish.

Oral Argument at 7:50, Chun v. Bd. of Land & Nat. Res., -- Hawai‘i --,

-- P.3d -–, 2022 WL –- (August 11, 2022) (mem.), 

http://oaoa.hawaii.gov/jud/oa/20/SCOA_091820_ SCAP_19_501.mp3. 
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(d) The State shall have authority to enforce this section 

and the rules adopted by the Western Pacific Regional Fishery 

Management Council through the National Oceanic and Atmospheric 

Administration and incorporated by reference into state law 

within:

(1) The State’s marine waters as defined in section 189-

1.5[.]

It is a well-accepted “canon of construction that 

statutes that are in pari materia may be construed together,” 

State v. Kamana‘o, 118 Hawai‘i 210, 218, 188 P.3d 724, 732 

(2008), so that “[w]hat is clear in one statute may be called 

upon in aid to explain what is doubtful in another,” HRS § 1-16

(2009). Therefore, because HRS § 189-2.5 is a prohibition on 

longline fishing, it is relevant to this court’s analysis.

To summarize these pertinent parts of HRS § 189-2.5: 

(1) longline fishing is prohibited within the state’s 

territorial sea, and (2) the state’s authority to regulate 

longline fishing extends to the boundaries of the state’s marine 

waters. 

The state’s marine waters are defined by HRS § 189-1.5

(2011) as ”extending from the upper reaches of the wash of the 

waves on shore seaward to the limit of the State’s police power 

and management authority, including the United States 

territorial sea, notwithstanding any law to the contrary.” The 

legislative history of HRS § 189-1.5 states: 

The purpose of this bill is to define the boundaries of the 

state marine waters as extending twelve nautical miles 

seaward from the upper reaches of the wash of the waves on 
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shore and the archipelagic waters. It also defines the 

territorial sea as the waters and seabed extending seaward 

to twelve nautical miles from the baseline of the United 

States as determined in accordance with international law 

and as established by Presidential Proclamation 5928, dated 

December 27, 1988.16 

Conf. Comm. Rep. No. 6, in 1990 House Journal, at 756, 1990 

Senate Journal, at 759 (emphasis added). Thus, the legislature 

intended that “State marine waters” encompassed both the United 

States territorial sea, as described in Presidential 

Proclamation 5928, and the “archipelagic waters” of the state. 

Presidential Proclamation 5928 provides that “[t]he 

territorial sea of the United States henceforth extends to 12 

nautical miles from the baselines of the United States 

determined in accordance with international law.” Proclamation 

No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988) (emphasis added). 

Thus, we conclude that the territorial sea contemplated in HRS 

§§ 189-1.5 and 189-2.5 extend twelve nautical miles from 

Hawai‘i’s baseline. 

 16 President Ronald Reagan issued Presidential Proclamation 5928, 

entitled “Territorial Sea of the United States of America,” on December 27, 

1988. Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988). In 

Proclamation 5928, President Reagan extended the United States’ territorial 

sea to “12 nautical miles from the baselines of the United States,” reasoning 

that “[e]xten[ding] the territorial sea . . . to the limits permitted by 

international law will advance the national security and other significant 

interests of the United States.” Id. Proclamation 5928 explicitly states, 

“Nothing in this Proclamation . . . extends or otherwise alters existing 

Federal or State law or any jurisdiction, rights, legal interests, or 

obligations derived therefrom[.]” Id.
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The legislature also employed the term “archipelagic 

waters” in the conference committee report for HRS § 189-1.5 but 

did not provide a definition. See Conf. Comm. Rep. No. 6, in 

1990 House Journal, at 756, 1990 Senate Journal, at 759. The 

1982 United Nations Convention on the Law of the Sea (UNCLOS) 

defined the extent of “archipelagic waters” as “the waters 

enclosed by the archipelagic baselines drawn in accordance with 

article 47 . . . regardless of their depth or distance from the 

coast.” UNCLOS art. 49, ¶ 1, Dec. 10, 1982, 1833 U.N.T.S. 397. 

Under UNCLOS art. 47, ¶ 1, archipelagic baselines are determined 

by drawing straight lines “joining the outermost points of the 

outermost islands and drying reefs of the archipelago” to create 

an area enclosing the main islands. Id. at art. 47, ¶ 1. 

Although the United States has not ratified UNCLOS, the UNCLOS 

definition of “archipelagic waters” is widely accepted in 

international law. See, e.g., Restatement (Third) of Foreign 

Relations Law § 11 cmt. (referencing the UNCLOS definition). As 

the BLNR found, the archipelagic waters of Hawai‘i do not extend 

“more than fifty miles to the north or east of the islands, or 

more than one hundred miles to the west or south.” Importantly, 

it is undisputed that longline fishing vessels do not fish

within the archipelagic waters.
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In summary, neither the territorial sea nor the “State 

marine waters” encompass the 200-mile area of the federal EEZ. 

By prohibiting longline fishing in Hawai‘i’s territorial sea in 

HRS § 189-2.5, the legislature intended to prohibit longline 

fishing within a 12-mile area. Further, the “State marine 

waters,” which the legislature intended to include the 

territorial sea and the archipelagic waters, do not encompass 

the 200-mile area of the federal EEZ. Therefore, under HRS §§

189-2.5 and 189-1.5, the state’s current statutory authority to 

regulate longline fishing does not extend to the outer limits of 

the federal EEZ.

2. The longline fishing vessels at issue in this case do 

not fish within the “waters of the State,” the state 

marine waters, or the channels between the islands 

The BLNR’s findings of fact note that “longline boats 

do not fish closer than fifty miles to the north and east of the 

main Hawaiian Islands, and [not closer than] one hundred miles 

to the south and west of the main Hawaiian Islands.” On appeal 

to this court, an agency’s finding of fact will be reversed only 

where the finding of fact is “[c]learly erroneous in view of the 

reliable, probative, and substantial evidence on the whole 

record.” HRS § 91-14(g); see Flores, 143 Hawai‘i at 121, 424 

P.3d at 476. Chun does not contest this finding of fact, nor 
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does he point to any contrary evidence.17 Thus, the BLNR’s 

finding of fact was not clearly erroneous.

As to the state’s marine waters, the BLNR explicitly 

found that “[t]he longline boats do not fish in this twelve-mile 

belt.” Another BLNR conclusion of law specifically addressed 

waters between the islands, finding that “[t]he longline boats 

do not fish in the channels.” On appeal, Chun does not 

challenge these conclusions of law. We thus accept the BLNR’s 

conclusions that the longline fishing vessels at issue in this 

case do not fish within the 12-mile area of the state marine 

waters, including the channels between the islands. 

Under the current statutory framework, the legislature

delegated to the DLNR the authority to issue CMLs to persons 

that take marine life within or outside the State for commercial 

purposes. Notwithstanding the undisputed fact that longline 

fishing vessels at issue do not fish within the “waters of the 

State” under HRS § 189-5, the statute nonetheless allows CMLs to 

be issued to a foreign nonimmigrant crewmember on a longline 

fishing vessel for marine life caught outside state waters. 

 17 Chun argues in his Opening Brief that the BLNR’s conclusions of

law were premised on “clear factual errors.” Specifically, Chun argues that 

the “BLNR incorrectly concluded the ‘waters of the State’ . . . do not 

include waters of the EEZ,” citing to the BLNR’s conclusions of law within 

the BLNR’s broader conclusion that “[t]he [l]ongline [b]oats do not [f]ish 

‘in the [w]aters of the State.’” In its Answering Brief, the BLNR pointed

out that Chun’s Opening Brief did not dispute the findings of fact that 

established where longline fishing vessels actually fish. 
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V. CONCLUSION

For the foregoing reasons, the circuit court’s final 

judgment filed on July 1, 2019, is affirmed. 

DATED: Honolulu, Hawai‘i, August 11, 2022.

Lance D. Collins /s/ Mark E. Recktenwald

Bianca Isaki

for Plaintiff-Appellant /s/ Paula A. Nakayama

Mālama Chun

/s/ Sabrina S. McKenna

William J. Wynhoff

Daniel A. Morris /s/ Michael D. Wilson

for Defendant-Appellee

Board of Land and Natural /s/ John M. Tonaki

 Resources, Department of Land

 and Natural Resources, 

 State of Hawai‘i

Geoffrey M. Davis

for Defendant-Appellee

Hawai‘i Longline Association